Endangered Species Pesticide Case Could Wrap Up Quickly

By Tiffany Stecker

A federal judge appeared ready to move quickly in deciding a court case challenging the EPA’s approval of a pesticide under the Endangered Species Act (Center for Biol. Diversity v. EPA, D.C., 14-1036, 1/11/17).

Attorneys for the Center for Biological Diversity and the Department of Justice argued before a three-judge panel on the U.S. Circuit Court of Appeals for the District of Columbia Circuit Mar. 6 over details of which court— the appeals court or the lower district court—should rule on whether the Environmental Protection Agency violated the Endangered Species Act (ESA) in licensing a pesticide that may harm rare insects.

A decision in the district court—an outcome favored by the Center for Biological Diversity—would conform with procedures under the ESA. Under the species-protection law, challenges from citizen groups must begin in federal district courts. A court decision in favor of the center would likely set a precedent for challenges against numerous pesticides.

A decision in favor of the center could also compel a more thorough examination of pesticides, but could complicate work under an existing framework to study the risks that pesticides pose to wildlife.

Case Could Be Crucial

The case could be crucial in determining how pesticides are approved by the agency in the future. The center and other environmental groups have criticized the EPA for sidestepping the consultation process between the agency and federal wildlife management agencies required before pesticides can go to market. At least four other cases are on hold pending the outcome of this challenge.

Earthjustice attorney Amanda Goodin, representing the Center for Biological Diversity, argued that EPA approved cyantraniliprole without meeting with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service.

Goodin also said that the center has standing to bring the case in district court because the EPA had not provided a public hearing as needed under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), a detail that dictates which court has jurisdiction over the issue. Cyantraniliprole is an insecticide that citrus and blueberry farmers depend on to control crop damage.

‘One of the Oddest Cases I’ve Ever Seen’

The wrangling over court jurisdiction appeared to puzzle D.C. Circuit Judge David Tatel.

“What’s the possible reason to send this back to the district court when we can do it here in the next half hour?” he asked Goodin, adding that the center would get a resolution much faster on the question of EPA violating the law if it was decided in appeals court.

Tatel added that “this is one of the oddest cases I’ve ever seen,” because the EPA was not disputing the fact that it had not consulted with the wildlife agencies. Yet the court was tasked with deciding the standard for jurisdiction.

“You can get your fastest relief here,” he told Goodin.

Senior Judge A. Raymond Randolph also questioned Goodin’s point that no “public hearing” was held in assessing the pesticide’s risks, given that the process was not a formal rulemaking.

Travis Annatoyn , the Justice Department attorney representing the EPA, told the judges that the case could disrupt the process to work on a framework for addressing pesticides that pose risks to endangered species.

The consultations are “huge, nationwide” consultations, said Annatoyn. Pushing through a decision on cyantraniliprole could amount to “line-cutting” ahead of more toxic chemicals, and complicate efforts to create a mechanism for approving pesticides.

Former Office of Pesticide Programs Director Bill Jordan has criticized environmental litigation on endangered-species grounds, saying the lawsuits leave the government “severely constrained” in how it does its job.

The case is an appeal from a 2015 district court decision, in which D.C. District Court Judge Gladys Kessler dismissed the environmentalists’ challenge on the grounds that cases under FIFRA should be filed in appeals court, not district court ( Ctr. for Biological Diversity v. EPA, D.D.C., 1:14-cv-00942, 6/11/15).

Earthjustice appealed that decision, and the court has consolidated the appeal with an earlier 2014 appeals court challenge that Earthjustice filed simultaneously with the district court petition on the cyantraniliprole approval.

Circuit Judge Karen Henderson was also on the panel.

To contact the reporter on this story: Tiffany Stecker in Washington, D.C. at tstecker@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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